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A WBUR SPECIAL REPORT

BadChemistry

Annie Dookhan And The Massachusetts Drug Lab Crisis

Public Defenders’ Forensic Director: “Entire Lab is Still Suspect”

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Above: WBUR’s Deb Becker interviews Anne Goldbach, forensic services director for the Committee for Public Counsel Services (CPCS), in April 2013. CPCS is a pseudo-state organization that oversees legal representation to the poor in cases for which there is a right to counsel, most of which is provided by several thousand private attorneys who are certified to accept appointments.

The bulk of the criminal cases affected by the drug lab crisis are being handled by public defenders. Some estimates suggest that public defenders are dealing with more than 85 percent of the drug lab cases. Anne Goldbach, the Director of Forensic Services for the state’s criminal defender agency, says the drug lab crisis shows a lack of transparency on various levels.

According to Goldbach, there had been little transparency about drug testing — about standards at state labs and among state agencies — and the problems with Annie Dookhan at the now-closed Hinton Drug Lab show a lack of proper management as well as a disregard for lab protocols. She expects the fallout will continue for many years to come.

“You had lack of supervision, you had lack of standards, you had sky high numbers of samples being processed by Annie Dookhan year after year and everybody looked the other way. Nobody said, ‘What’s going on with this?’”

Goldbach hopes the crisis will push the state to increase funding for forensic testing and move toward a standard where scientific labs are independent from law enforcement agencies. She says all labs should be what’s known as ASCLAD-LAB Certified, which requires regular audits and strict monitoring. The Hinton Drug Lab was not accredited.

It is not [a district attorney's] job to guess about what’s going to happen when these people are released… Their role is to do justice. And justice in these cases is to dismiss them when somebody has not been faced with a quality of evidence — a quality of forensic testing — that’s required for these cases.

Anne Goldbach is the forensic services director for the Committee for Public Counsel Services (CPCS) in Boston. After graduating from Boston College Law School, Ms. Goldbach joined the Massachusetts Defenders Committee in 1978 as a public defender. After the creation of CPCS, she joined the staff of Roxbury Defenders in January 1985, where she became a supervising attorney. She was selected as attorney in charge of the Boston office in November 1987. After running the Boston Trials Unit for 10 years, Ms. Goldbach became CPCS’s forensic services director in November 1997. In that capacity, she acts as a resource on forensic issues and experts for public defenders and bar advocates across the state. (Bio via LinkedIn)

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Anne Goldbach: Well, we still await more information and certainly we anticipate the Inspector General’s report. But we know, for instance, for starters, their standards, their protocols were very generalized. They weren’t the specific, detailed protocols that a drug lab – a forensic drug lab – should have. We also know they didn’t follow quality control and quality assurance as they were supposed to. And supervisors had difficulty meeting with those people they were supposed to be supervising. So to begin with, you have all those problems. This lab was not producing the rigorous type of forensic testing that one would expect from a lab that was properly accredited.

Deb Becker: If this hadn’t happened with Annie Dookhan, would this have ever come to light and how was this allowed to continue?

There are a couple of things that were very important that led to this revelation. One is, thank goodness, we have Melendez v. Diaz, which forced us to confront, or allowed us to confront, the chemists in court and to obtain the underlying drug files that people weren’t always necessarily always getting or asking for before Melendez v. Diaz.

The other thing that happened, thankfully, was that the Department of Public Health procedures, such as they had them, was a two chemist system, so it was another person who worked with Annie Dookhan who realized that some initials had been forged. And it was that, that began the unraveling of this whole situation.

And we should explain, Melendez v. Dias is the Supreme Court ruling that requires chemists to appear in court and testify.

That’s right. And that came out of Massachusetts.

One thing that struck me was emails between Annie Dookhan and various prosecutors. Those emails suggest informal relationships with many prosecutors, defendants named in some of the emails so the chemist knew exactly which cases she was testing for, what they were charged with. And comments about the system that were certainly, from an outsider, unexpected, I think and almost surprising that there was that level of informality and amount of information available about the cases that she was testing. What do you take from that?

Well, it’s really quite disappointing and disconcerting to see that type of communication. We’re supposed to have forensic scientists who are objective. That’s the whole goal. And you hearken back to the NAS report back in 2009 strengthening forensic science in the United States, they talk about the types of bias that can occur, unconsciously –

NAIS?

The NAS – National Academy of Science reports. They talk about the need to have objective science in forensics and the ways in which people develop unconscious bias if they feel aligned to one side or the other in the criminal justice system.

Here, you have people who are by no means removed from the roles of prosecutor and police officer. So, while chemists need to know that they’re being summonsed to court on a particular case and they may know the name of that case, they certainly shouldn’t have information about what happened in that case, the person charged with potentially controlled substances. And to have that information before they even begin the testing –

The idea is that you should be blind testing. And you have discussions about how we need to put these people in jail, we need to lock them up for a long time, this person is a terrible person. And that is absolutely unconscionable. It’s not the type of scientists we want in our forensic labs. It’s not the type of communications that we need to have with forensic scientists. They need to know when to go to court. They need to know the name of a case, but other than that they should remain objective and impartial.

The district attorneys that we’ve spoken with about this say that the emails don’t show a pattern of any wrongdoing. They claim that the emails and the communication was necessary: (a) to arrange testimony on the part of the chemist because of Melendez v. Dias, the prosecutors had to talk with chemists to arrange these cases. They also say the tone of informality, they consider that to be a generational thing, that they suggest that relationships may have developed between chemists and prosecutors over the years because a chemist may have been in touch with a prosecutor so frequently and that informality is the same as it might be over the telephone but those conversations aren’t in writing and email, and this email shows a degree of informality that it may be informal, but not necessarily inappropriate. And they say some of the emails that have been called into question already that state police have asked one prosecutor about in particular, who got in trouble and ended up resigning, that prosecutor isn’t charged with any wrongdoing so the investigators felt that there was nothing wrong there. So they don’t think that these emails show a pattern of any wrongdoing at all.

Informality is one thing, but it’s a stretch to say there’s nothing wrong with this type of communication. Again, you can tell because of those very personal communications, because of those detailed communications, you can tell that Annie Dookhan feels or felt a sense of allegiance to the prosecution. Absolutely she saw herself on the prosecution team. It’s one thing to say, ‘How’s your kid,’ whatever. But again, it develops a type of relationship that begins to become personal and you naturally begin to feel a sense of allegiance to one side or the other, and in this case, the prosecution. I’m sorry. I just think it’s not professional.

They also say that, well, it’s a state lab. Of course she’s a prosecution witness. That’s what she’s supposed to be. Do there need to be new parameters set?

Even the discovery that we received – although I can’t find any rule in writing – there was talk among some of the people who, or information that came from people who worked in the lab, that you were supposed to go through the evidence officer to make these types of communications, not through the chemist necessarily.

And I know the State Police Lab, while they do have a computerized system, again, there are layers in terms of how you communicate with people in that lab. But yes, we need new parameters. It should be that you go through somebody who deals with court, that that person filters what gets to the forensic scientists. They can pass along the information about the need to bring those people to court, that they need to schedule themselves, for particular days to testify. And ideally – again, hearkening back to the NAS report from four years ago now — ideally, we would have independent forensic labs, just like we’re about to have a national, independent forensic commission.

The initial estimate that this affects – could affect – 34,000 cases, do you think that’s off?

I do think it’s off. We expect it could be many thousands more, tens of thousands more. The potential could be 190,000 or some smaller subset of those 190,000. And, again, part of that depends on what we learn about the entire lab, but right now, the entire lab is still suspect. Annie Dookhan had her hand in various parts of the whole process that went on at that lab.

From possibly having access to the evidence safe to quality control, quality assurance in the lab. We know that there were defects and errors and intentional wrongdoing in her actual testing and it appears she had access to the databases at times. So from the beginning to the end of the testing process, she had her hand in it.

There’s discovery that says she failed to maintain some of the standards and the weights that were used in the testing. All those things could affect the work of other chemists, even if they weren’t doing anything wrong.

And everybody, of course, is still asking why.

We really don’t know why. Certainly, it’s not just a situation of one rogue chemist. If anything, you had people looking away. You had lack of supervision, you had lack of standards, you had sky high numbers of samples being processed by Annie Dookhan year after year and everybody looked the other way. Nobody said, ‘What’s going on with this?’ You had people looking away when she was processing all these cocaine cases without doing the microcrystalline test for each one. There were just so many instances that people neglected to do what they should have been doing. So yes, there are many reasons to believe that there are tens of thousands of cases more.

So what, overall you think that the SJC needs to put its stamp of approval on the process by which we’re handling these cases or at least give attorneys and district attorneys and everybody sort of the framework by which they should do this?

Well, that’s certainly going to happen, I think, with these two cases that are up in the SJC or on their way now. We’ll see if, at some point, they will be willing to hear argument about a finding a better way to handle these cases, a larger solution to the cases.

And now, everything goes to the state police lab, for the most part.

Yes, all drug testing is now going to the state police lab except for some drugs that are going to UMass Medical.

And are those labs accredited? Where are we now? Are we going to learn a lesson from any of this?

The state police lab is accredited right now. It’s a legacy accreditation right now. And they are applying for ISO 17025 : 1025 and they’re going to be going through that – they’re working on it now. I think their inspection is coming up in June and that is a more rigorous accreditation than the previous one. In an ideal world, all forensic labs would be independent. But certainly, the quality of their work is superior to what was going on at the Hinton Lab. I think there needs to be more transparency. I’m glad to see that the discovery that comes with their drug testing is with much more detailed than we saw coming out of the Hinton Lab, but there’s a lot more that I’d like to see that’s transparent. And frankly, I think all the protocols, all their standards, all their manuals should be online just like they are in other states. Not a lot of states, but you should be able to look that up — I should be able to look that up, you should be able to look it up. What are their safety procedures? What are their quality control procedures, their quality control. What are their drug testing protocols? Everything.

Would you say that the defense attorneys that you work with, pretty much, are they still struggling with this?

It’s an ongoing process. It’s very difficult for us, and we’re focusing on it, to keep on top of all the new information, to keep it organized and to disseminate it and, on top of everybody’s regular work, they have to stay on top of this. So it’s not easy.

So on top of the fact that the initial estimate of 34,000 cases might be wrong, the initial cost estimate is probably wrong as well.

Probably.

So this is maybe hundreds of millions of dollars?

It could be, it could be. Maybe when the SJC looks at these cases and they say the magistrates have the ability to do what they’re doing. Maybe if they reject some of the arguments that are being put forth by the prosecution, maybe the DA’s will take a different stance towards some of these cases and maybe it will be easier to get rid of some of these cases, the cases that should be nolle prossed or dismissed.

Other than that, we’re going to have to hope for a more global solution – whether it comes from the SJC or perhaps from the governor – something that says that in these categories of cases, where Annie Dookhan, for instance, was the primary chemist, that case is gone, that case is out.

There’s been arguments that we can retest those cases. But you really can’t because the chain of custody was so lax in these cases. We know, for instance, that at times they couldn’t even keep all the evidence in the evidence safe. Drugs were spilling out of the lab, there just wasn’t enough room. And we know that Annie Dookhan put drugs from one case into drugs from another case. So I just don’t see how you can argue that in most instances that you can even retest these drugs.

Some of the district attorneys have said that they know that they may not be able to prove guilt beyond a reasonable doubt in some of these cases and they may have to dismiss them, but they think that public safety is being compromised.

It is not their job to guess about what’s going to happen when these people are released. I understand those concerns. It’s not their fault that this happened at that lab. But their role is to do justice and justice in these cases is to dismiss them when somebody has not been faced with the quality of evidence, the quality of forensic testing, that’s required for these cases.

And if they cannot prove these cases beyond a reasonable doubt, and it would be unjust to prosecute somebody where they have faulty evidence, then it is their job to dismiss these cases. That is what’s just. That is what’s fair.

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